Opinion
2014-07-16
WESTCHESTER MEDICAL CENTER, as assignee of Steven Valuch, appellant, v. MAPFRE INSURANCE COMPANY OF NEW YORK, respondent.
Joseph Henig, P.C., Bellmore, N.Y., for appellant. Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.
Joseph Henig, P.C., Bellmore, N.Y., for appellant. Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.
In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered October 2, 2013, which denied its motion for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the complaint, in which the plaintiff sought to recover no-fault medical payments from the defendant, by tendering proof that the claim was neither paid nor denied within 30 days of the defendant's receipt of the prescribed claim forms ( see Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 A.D.3d 1014, 1017, 858 N.Y.S.2d 754;Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 A.D.3d 750, 752, 843 N.Y.S.2d 182). However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the claim based on the alleged intoxication of the plaintiff's assignor at the time of the accident by the issuance of a denial within 30 days of the receipt of additional verification it requested concerning the claim ( see Westchester Med. Ctr. v. Clarendon Natl. Ins. Co., 57 A.D.3d 659, 660, 868 N.Y.S.2d 759;Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 A.D.3d at 1017, 858 N.Y.S.2d 754). Although, as the defendant acknowledges, some of the evidence it submitted was not in admissible form, it proffered an “acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form” ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;see Merriman v. Integrated Bldg. Controls, Inc., 84 A.D.3d 897, 899, 922 N.Y.S.2d 562;cf. Oddo v. Edo Mar. Air, 34 A.D.3d 774, 775, 826 N.Y.S.2d 343). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint. MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.